Haris Chandra Jani vs State of Orissa

B. Panigrahi, J.—This revisional application is directed against the order of conviction passed by the learned CJ.M.-cum-Assistant Sessions Judge, Nabarangpur in Sessions Case No. 12 of 1994 u/s 307, I.P.C. and the order passed by the appellate Court in Criminal Appeal No. 8 of 1995 passed by the learned Sessions Judge, Koraput-Jeypore whereby the petitioner was convicted u/s 307, I.P.C. and sentenced to undergo R.I. for three years.

The prosecution story as unravelled during the trial of the case is as follows :

That the injured victim-P.W. 3 namely Dinabandhu Jani and also the petitioner Haris Chandra Jani are two brothers. On the date of occurrence i.e. on 9.6.1994 at 2.00 P.M. while the petitioner himself was engaged in digging a manure pit near the side of the house of his brother, Dinabandhu Jani (P.W. 3) is said to have gone near the pit and thereafter an altercation ensued between them for which the petitioner being enraged, assaulted P.W. 3 by means of a spade resulting in bleeding injuries. After some time, injured Dinabandhu was taken to the Papadahandt hospital, where he was admitted as an indoor patient. On the basis of the report lodged by the victim''s father, a case u/s 307, I.P.C. was registered against the petitioner and investigation started and after closure of investigation, charge sheet was submitted against the petitioner. After the matter was committed to the Court of Session, it was tried before the Assistant Sessions Judge, Nabarangpur who relying on the evidence of P.W. 3 as well as the Doctor (P.W. 9) found that the petitioner had committed an offence punishable u/s 307, I.P.C. and accordingly sentenced him to undergo R.I. for three years.

On appeal, the learned Sessions Judge on re-appraisal of the evidence on record has also re-affirmed the order of conviction and sentence recorded against the petitioner. The petitioner has therefore, undaunted by the concurrent orders of conviction and sentence of the Courts below has filed this revision.

Mr. Mishra, learned Advocate appearing for the petitioner, has submitted that in this case both the courts below did not rely on the prosecution witnesses save and except the evidence of the injured (P.W. 3) and also the Medical Officer (P.W. 9). It has been further high-lighted that even the trial court ought not to have placed utmost reliance on the testimony of the Medical Officer (P.W. 9) , which is discrepant to the evidence of the injured himself. It is submitted that the learned trial court convicted the appellant for having made an attempt on the life of the injured and the appellate court, therefore, was swayed away by the observation of the trial court, without going in detail about the evidence of the prosecution. If we exclude the evidence of the prosecution witnesses, we are left only with the evidence of the injured (P.W. 3) which does not support the prosecution case so as to record an order of conviction u/s 307, I.P.C.

Mr. Mohanty, the learned Add). Government Advocate while repelling the contentions of Mr. Mishra has seriously contended that in this case whatever possible oral evidence and circumstances available leading to prove the guilt of the accused have been placed by the prosecution. Even though ail the witnesses including the father of the injured were declared hostile, the circumstance placed by the prosecution cannot be said to be false. In this case, there is no reason as to why the injured (P.W. 3) will falsely allege against his younger brother who had no previous enmity with him. Therefore, the trial court as well as the appellate court on re-appraisal of the evidence had correctly held the appellant guilty u/s 307, I.P.C.

After going through the evidence of the prosecution, particularly of the injured (P.W. 3), I find that there was no enmity between the injured and the petitioner. The incident must have evoked out of a sudden impulse arising from the altercation between them which resulted into injuries. One of the injuries said to have bean sustained by P.W. 3 was by the blunt side of a spade from which it cannot be said that the accused had attempted on the life of the injured. It is to be also considered that when there was no enmity between them, why this petitioner would have made an attempt on his life. Accordingly, both the courts should have considered the case of prosecution to find out whether it does come u/s 324 of the Indian Penal Code. The evidence and circumstances of the case are fully justified to arrive at a conclusion that the petitioner had assaulted P.W. 3, but had not made an attempt on his life. Accordingly, the conviction and sentence recorded by both the courts below are altered to one u/s 324 of the Indian Penal Code.

In the aforesaid premises, in order to meet the ends of justice and particularly since the incident took place between two brothers and the accused belongs to Schedule Tribe, I deem it proper to convict the petitioner u/s 324 of the Indian Penal Code and direct him to suffer imprisonment for the period already undergone and to pay a fine of Rs. 500/- (Rupees five hundred), in default to undergo further R.f. for a period of two weeks. The fine amount shall be paid to injured (P.W. 3) or realisation.

Accordingly, the conviction and sentence have been modified and the revision is allowed to the extent indicated above.